GROTIANA
Grotiana 30 (2009) 65–87
brill.nl/grot
On Grotius’s Mare Liberum and Vitoria’s
De Indis, Following Agamben and Schmitt1
Johannes humfart
Institute for Philosophy, Freie Universität, Berlin
Email: j.thumfart@fu-berlin.de
Abstract
he idea of free trade in Grotius’s Mare liberum and his legal opinion De iure praedae has a strong
theological basis. Grotius called the right to travel and trade freely a ius sanctissimum, a ‘sacrosanct law’. He also perceived the Freedom of the Seas as being a direct result of the will of God.
his theological background was strategically necessary because Grotius developed the Mare
liberum and the De iure praedae to argue against Spanish-Portuguese claims to a trade monopoly
that also had theological underpinnings. But the theological aspect of Grotius’s theory was also
emphasized by the references he made to the Dominican friar Francisco de Vitoria’s ius communicationis. his precursor to Grotius’s Freedom of the Seas, which Vitoria had developed in his
De indis, is connected to the legal justification of Christian mission and so has a clear theological
connotation. In Grotius’s work, Vitoria’s concept of a universal right to Christian mission supervised by the pope was transformed into a theologically supported right to free trade. With this
transformation of the ius communicationis into the principle of the Mare liberum, Grotius develops a theological basis not for politics but for economics. One can speak therefore, following
Giorgio Agamben, of an ‘economic theology’ in regard to Grotius, a term that is, in turn, derived
from Carl Schmitt’s notion of ‘political theology’.
Keywords
Hugo Grotius, Carl Schmitt, Giorgio Agamben, Francisco de Vitoria, Economic heology, Mare
Liberum
Introduction to subject matter and method
As the recent financial crisis has once again made all too clear, the concept of
free trade is one of the most important – and most problematic – of our time.
he necessity for greater regulation of trade, especially in the financial sector,
1
I would like to thank everyone who has contributed to this paper. Katherine Hunt, Joe
Holden, Gabriel Montua, and Anja Wiesinger concerning style and language, Gustaaf Van
Nifterik, Christoph Stumpf, Peter Borschberg, and Martine Julia Van Ittersum, as well as an
anonymous referee of Grotiana for helpful remarks concerning the content.
© Koninklijke Brill NV, Leiden, 2009
DOI 10.1163/016738309X12537002674286
66
J. humfart / Grotiana 30 (2009) 65–87
has lately been emphasized by various political leaders, including German
Chancellor Merkel, French President Sarkozy, and U.S. American President
Obama. his is a cause for concern, and not just for the most outspoken of
laissez-faire liberalists. Often presented as one of the basic pillars of modern
liberal society, the liberty to trade freely, governed by one’s own responsibility,
seems an unquestionable, undeniable and absolute prerequisite to the development of a global civilization.
But rather than knowing exactly why free trade is so essential, one seems to
associate it with a number of positive, mostly long-term effects that are anything but easy to grasp. According to Viner, it has been common in intellectual
history to attribute a ‘providential’ quality to free trade. Due to divine providence, the invisible hand of the market was expected not only to establish a
balance of supply and demand, but also to turn private vices into public benefits.2
Inasmuch as it enables the peoples of the world to exchange goods and services
with each other on a free basis – that is, to interact globally in peaceful ways –
the process of free trade is supposed to lead to stabilization of international
relations, as Kant writes.3 Furthermore, the concept of free trade is eschatologically and teleologically charged, in that some believe an internationalization of
economic struggle will naturally lead to an evolution of the quality of goods
and methods of production, and to a more just distribution of wealth.
All of these are hopes for the future that cannot immediately be verified.
One rather simply has faith in them as if they were religious truths. he path
of free trade seems inexorably to lead to the vague promise of a better world,
a world that is more international, more efficient and more just – a veritable
‘new heaven on earth’4 and even a ‘Sprengung des Himmels durch gesteigerte
Menschhaftigkeit’ – brought about by the believers of the ‘capitalist religion’,5
if one follows Nelson’s or Benjamin’s polemics.
his essay tries to elucidate the religious quality of free trade at its very origin. It addresses the theological connotation of the idea of free trade in
2
Jacob Viner, he Role of Providence in Social Order. An Essay in Intellectual History
(Philadelphia: American Philosophical Society, 1972), pp. 55-85.
3
Immanuel Kant, Zum ewigen Frieden, Akademie Ausgabe VIII, p. 368; In this passage, Kant
refers to the so-called doux-commerce-thesis that was prevalent during the seventeenth and eighteenth centuries. See: Laurence Dickey, ‘Doux-commerce and humanitarian values: free trade,
sociability and universal benevolence in eighteenth-century thinking’, Grotiana 22/23 (2001/02),
pp. 271-318.
4
Robert H. Nelson, Reaching for Heaven on Earth. he heological Meaning of Economics
(Maryland: Rowman Littlefield, 1991), p. xxii.
5
Walter Benjamin, Kapitalismus als Religion, ed. by Dirk Baecker (Berlin: Kulturverlag
Kadmos, 2004), p. 16.
J. humfart / Grotiana 30 (2009) 65–87
67
Grotius’s Mare liberum, one of the first early-modern manifestos to advocate
free trade. It will be demonstrated that the idea of free trade evolved as an
‘economic theology’ in the seventeenth century, and was connected to the
principle of free mission in the canon law of the Middle Ages. his will be
made clear by illuminating the theological background of Grotius’s Mare
liberum, particularly by highlighting the impact of the Dominican friar
Francisco de Vitoria’s Relectio de indis on Grotius’s ideas.
Central to this interpretation is the application of Giorgio Agamben’s
term ‘economic theology’ to Grotius, a term that was developed as an enhancement of Schmitt’s thesis of ‘political theology’.6 Schmitt’s thesis of political
theology – that certain terms of political theory can be interpreted as ‘secularized theological concepts’ (‘säkularisierte theologische Begriffe’)7 – can also be
applied to economy. An economic theology in this sense is a secular or, rather,
secularized concept of economy that has its roots in a theological idea. To
Schmitt, the legal structure of state sovereignty appears to be derived from the
theological concept of an omnipotent God. Agamben likewise shows the
theological background of early-modern economic theorists such as Linnaeus,
Quesnay and Smith.8 According to Agamben, the New Testamentarian and
patristic notion of a providential oikonomia had a considerable influence on
the theory of economic laissez-faire.9 Following both Schmitt and Agamben,
Grotius’s conception of the legal status of economy can be perceived as being
theologically derived.
Grotius and Vitoria: historical placement and economic-theological form
In March 1609, Hugo Grotius (1583–1645), who is today recognized as one
of the fathers of international law, published a revised chapter of his legal
6
Giorgio Agamben, Il regno e la gloria. Per una genealogia teologica dell’economia e del governo.
Homo sacer, 2, 2 (Vicenza: Neri Pozza, 2007), p. 14; Johannes humfart, English review of
Agamben, Il regno e la gloria, in Alea. revista internacional de fenomenología y hermenéutica 6
(2008), pp. 187-191;he term ‘economic theology’ can also be found in the discussion of theological implications of the ‘invisible hand’ at Adam Smith. See: Duncan K. Foley, Adam’s Fallacy.
A guide to Economic heology (Harvard: Harvard University Press, 2006); Nelson, Reaching for
Heaven on Earth, pp 95-106.
7
Carl Schmitt, Politische heologie. Vier Kapitel zur Lehre von der Souveränität (Berlin:
Duncker & Humblot, 2004), p. 43.
8
Agamben, Il regno e la gloria, pp. 306-310.
9
Ibid., p. 35; See also: Gerhard Richter, Oikonomia. Der Gebrauch des Wortes Oikonomia im
Neuen Testament, bei den Kirchenvätern und in der theologischen Literatur bis ins 20. Jahrhundert
(Berlin: De Gruyter, 2005).
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J. humfart / Grotiana 30 (2009) 65–87
opinion on the ‘law of prize and booty’ (De iure praedae). he anonymous
publication, the full title of which is Mare liberum sive de iure quod Batavis
competit ad Indicana commercia, dissertatio, was the first modern attempt to
establish the legal status of the high seas.10 It was in this text that Grotius substantiated the normative ideals of global free trade, including those of equality,
reciprocity and private responsibility. In this regard, Grotius’s thinking considerably influenced Adam Smith (1723–1790) by way of Smith’s mentor Francis
Hutcheson (1694–1746), who read and quoted Grotius.11
However, Grotius’s assertion regarding the necessity of free trade was not
without precedent. In his De iure praedae, Grotius relied heavily on the arguments for free trade put forth by Francisco de Vitoria nearly one century earlier.12 In his Relectio de indis of 1539, Vitoria offered one of the first arguments
on international trade, law, and the implications of the Christian mission for
Europe’s relationship to overseas territories. It would prove instrumental for
Grotius, who in his De iure praedae also dealt with overseas trade.
Both of these men arrived at similar conclusions. Although Grotius and
Vitoria were probably born exactly one hundred years apart (1483 and 1583),13
both are considered to be the father of international public law.14 However,
10
Monica Brito Veira, ‘Mare Liberum vs. Mare Clausum: Grotius’, Freitas’, and Selden’s
debate on dominion over the seas’, Journal of the History of Ideas 64, 3 (2003), 361-377
(p. 361).
11
Richard F. Teichengraeber, Free Trade and Moral Philosophy. Rethinking the Sources of Adam
Smith’s Wealth of the Nations (Durham: Duke University Press, 1986), pp. 20-26, pp. 56-60, 65.
Teichengraeber on Hutcheson’s statements concerning private property: ‘Both the language and
the substance of … [his] statements identify Hutcheson as a follower of Grotius.’; Hutcheson
mentions Grotius in two prefaces as an important influence. See: Francis Hutcheson, Logic
Metaphysics, and the Natural Sociability of Mankind, ed. by James Moore and Michael Silverthorne,
transl. by Michael Silverthorne (Indianapolis: Liberty Fund, 2006), p. 8; Id., Philosophiae Moralis
Institutio Compendiara with A Short Introduction to Moral Philosophy, ed. by Luigi Turco, Latin
with English translation on facing pages (Indianapolis: Liberty Fund, 2007), pp. 3, 5; in the
latter passage, Hutcheson refers explicitly to Grotius’s ‘law of nature and nations’. See also
p. 147, a passage on property, in which Hutcheson probably indirectly draws on Grotius by way
of Pufendorf; According to Peter Dooley, Hutcheson also paraphrases Grotius in his ‘Observations
on “he Fable of the Bees” ’. See: Peter Dooley, he Labour heory of Value (London: Routledge,
2005), p. 11.
12
Peter Haggenmacher, ‘La Place de Francisco de Vitoria parmi les fondateurs du droit international’, in Actualité de la Pensée juridique de Francisco de Vitoria. Travaux de la journée d’études
organisée à Louvain-la-Neuve par le Centre Charles de Visscher pour le Droit International, ed. by
Antonio Truyol y Serra et al. (Bruxelles: Bruylant, 1988), 27-80, (p. 31).
13
Although there is a debate about whether Vitoria’s date of birth was 1492 or 1483, the latter seems more plausible. See: María del Carmen Rovira Gaspar, Francisco de Vitoria. España y
América, el poder y el hombre (México: Miguel Angel Porrua, 2004), p. 21n3.
14
Ernest Nys, Les origines du droit international (Brussels: Castaigne, 1894), p. 11; James
Brown Scott, he Spanish Origins of International Law. Francisco de Vitoria and his Law of Nations
J. humfart / Grotiana 30 (2009) 65–87
69
the connection between Grotius and Vitoria is limited neither to their respective historical impacts nor to the considerable degree to which Grotius quoted
Vitoria, but extends further, to their common intellectual foundation.
Grotius, like Vitoria, developed his arguments within the framework of theology.15 Accordingly, the reflections on the law and politics of free trade that
Vitoria and Grotius present within the scheme of their conceptions of international law, can be interpreted as an economic theology.
he form of economic theology underlying the arguments of Vitoria and
Grotius has two important characteristics. Firstly, both develop the normative
ideal of global free trade on the basis of the history of salvation. In this respect,
one can speak of a tradition of the ‘providential function of commerce’ within
which Grotius and Vitoria operated.16 his position axiomatically assumes
that there is a historico-teleological tendency inherent in global free trade,
such that the purpose of free trade is to unite the world in peace.
Secondly, the requisite openness of global exchange is, for both Grotius and
Vitoria, an economic theology that can be understood within the framework
of Schmitt’s notion of political theology. In the ‘systematic structure’ (‘systematischen Struktur’) of both global political conceptions, the concept of free
trade serves as the highest, ‘last’ (‘letzte’) principle17 to which political power
has to subordinate itself, under the threat of a ‘just war’ (bellum iustum), for
the cause of the maintenance of global free trade and open borders. his concept can be called an economic theology in the Schmittian sense particularly
with regard to Schmitt’s notion of political theology. As previously noted,
Schmitt defined political theology as ‘secularized theological concepts’ in the
political realm.18 In the case of Vitoria and Grotius, the great importance of
free trade is the result of theological viewpoints that underwent a gradual
secularization.
(New Jersey: he Lawbook Exchange, 2000; originally published Oxford: Clarendon Press,
1934).
15
In regard to Francisco de Vitoria, this is an obvious statement. Regarding the theological
thought of Grotius, see: Henk J. M. Nellen and Edwin Rabbie (eds.), Hugo Grotius: heologian.
Essays in Honour of G.H.M. Posthumus Meyjes, Studies in the History of Christian hought 55
(Leiden: Brill, 1994); Christoph A Stumpf, he Grotian heology of International Law. Hugo
Grotius and the Moral Foundations of International Relations (Berlin: De Gruyter, 2006).
16
Viner, he role of Providence in social order, p. 37; Viner uses this term in respect to Libanius
and early Christian theologians. In the section of this essay, subtitled ‘he theology of free trade’,
it will be shown that Grotius’s main theological argument in favour of free trade also stems from
Libanius. It is therefore possible to apply Viner’s term to Grotius.
17
Schmitt, Politische heologie, pp. 43, 50.
18
Ibid., p. 43. Quote originally in German. See supra n. 7.
70
J. humfart / Grotiana 30 (2009) 65–87
he components of an economic theology understood in this way – as history of salvation and universal politics – can neither be reduced to a renaissance of antique models of cosmopolitanism, nor be conceived of as a result of
Weber’s famous notion of the Protestant economic theology of ‘inner-worldly
ascetism’ (‘innerweltliche Askese’).19 Grotius’s and Vitoria’s economic theology
is a genuine product of the Catholic-Christian tradition, which the Protestant
humanist Grotius inherited by way of, among other sources, the writings of
Vitoria.
In this context, it should be noted that the reprise of Catholic-Iberian arguments was of practical use for Grotius.20 He employed these arguments as
‘irrefutable propositions’21 in the debate on the legitimacy of the VOC’s policy
to secure its trading expeditions by military means, which also included preemptive strikes. Having been hired by the VOC directors, Grotius promoted
Dutch interests against the claims of the Portuguese and Spanish to trade
monopolies in the East and West Indies. Because the Spanish had themselves
previously used the notion of a right to travel and trade freely in order to
legitimize the conquista, Grotius used the same argument to justify Dutch
military aggression against the Portuguese in terms of a Dutch defence of
their right to travel and trade freely against the Portuguese claims to a trade
monopoly.
he Mare liberum: An argument on the law of prize
Less well-known than Grotius’s discussion of Mare liberum in the twelfth
chapter of the De iure praedae commentarius is the complete legal opinion
itself. his is because the full text was not published until 1868. his work, De
iure praedae commentarius, was commissioned by the Verenigde Oost-Indische
19
Max Weber, ‘Die protestantische Ethik und der Geist des Kapitalismus’, in Id., Gesammelte
Aufsätze zur Religionssoziologie I (Tübingen: Mohr Siebeck, 1988), 17-206 (pp. 84-87).
20
Lleana Porras, ‘Constructing International Law in the East Indian Seas: Property in the East
Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius’ De iure praedae – he
Law of Prize and Booty, or “on How to distinguish Merchants from Pirates”’, Brooklyn Journal of
international law 31, 3 (2006), 741-804 (pp. 756, 770); Carl Schmitt, Der Nomos der Erde im
Völkerrecht des Jus Publicum Europaeum (Berlin: Duncker & Humblot, 1997), p. 151.
21
Eric Wilson, ‘Erasing the Corporate Sovereign. Inter-Textuality and an Alternative
Explanation for the Publication of Hugo Grotius’ Mare liberum (1609)’, Itinerario 30, 2 (2006),
78-103, (p. 78); With these fitting words, Wilson recapitulates the standard opinion on the
subject, which he then proceeds to put into perspective.
J. humfart / Grotiana 30 (2009) 65–87
71
Compagnie (VOC) on the occasion of a trial concerning the law of prize.22 he
trial dealt with the capture of the Portuguese merchant ship Santa Catarina by
the Dutch admiral Van Heemskerck, which took place in the early morning
hours of February 25th 1603, in the Strait of Malacca, located between the
Malayan peninsula and the island of Sumatra.
Although the – not yet independent – Dutch provinces were at war with
Spain and Portugal at the time, both parties of conflict were private ships that
were not formally engaged in acts of war. he complex question (‘multiplex
disputatio’23) was whether the private trading company VOC, for which Van
Heemskerck had sailed, was the rightful owner of the rich booty taken from
the hold of the Santa Catarina: a vast sum approaching three and a half million Dutch guilders.24 his could be the case only if Heemskerck’s attack that
led to the prize could be considered as having been in the scope of the paradoxical concept of a bellum iustum privatum, a legal act of private war.25
As was expected of him, in his legal capacity, the young lawyer Hugo Grotius
defended the overseas interests of his nation and his employer VOC. He characterized the capture of the Portuguese ship and the keeping of the prize as
lawful.
Grotius’s first line of argument denied the legitimacy of the Spanish and
Portuguese trade monopoly on the world’s seas, an assertion he had developed
mostly from an historical perspective. Since the discovery of the Canary Islands
in the fourteenth century and the discovery of the Americas from 1492 on, the
Spanish and the Portuguese had claimed trade and shipping monopolies, as
outlined in the treaties of Alcáçovas (1479), Tordesillas (1494), and Saragossa
(1526).
Despite the mostly secular character of the treaties of Tordesillas and
Alcáçovas,26 the Spanish and Portuguese claims can be interpreted as drawing
22
he debate about the historical context of the De iure pradae has led to a variety of different
interprations of the purpose of its publication. See: Martine Julia Van Ittersum, Profit and
Principle. Hugo Grotius, Natural Rights heories and the Rise of Dutch Power in the East Indies.
1595 – 1615 (Leiden: Brill, 2006), pp. 108-188.
23
Hugo Grotius, De iure praedae, I, ed. by H. G. Hamaker (Den Haag: Nijhof, 1868), p. 5.
24
Peter Borschberg, ‘he Seizure of the Sta. Catarina Revisited: he Portuguese Empire in
Asia, V.O.C. Politics and the Origins of Dutch-Johor Alliance. (1602 – 1616)’, Journal of
Southeast Asian Studies 33, 1 (2002), 31-62 (p. 35).
25
Porras, ‘Constructing International Law in the East Indian Seas’, p. 755; Grotius, De iure
praedae, VI, pp. 59-62; Hugo Grotius, Commentary on the Law of Prize and Booty, XII, transl. by
Gwladys L. Williams and ed. by Martine Julia van Ittersum, (Indianapolis: Liberty Fund, 2006),
pp. 127-142 [hereafter: Commentary].
26
Ute Schneider, ‘Tordesillas 1494 – Der Beginn einer globalen Weltsicht’, Saeculum 54, I
(2003), 39-62 (p. 48); Juan Goti Ordeñana, Del Tratado de Tordesillas a la Doctrina de los Derechos
72
J. humfart / Grotiana 30 (2009) 65–87
from the tradition of papal grants concerning overseas territories. In his bull
Inter caetera of 1493, Pope Alexander VI divided the world’s oceans, donating
half to the Spanish and half to the Portuguese.27 Such political-theological
intertwining of papal power and Portuguese-Spanish claims can be traced back
to, among other sources, those treaties which the Iberian kings and the papacy
had concluded during the process of the reconquista of the Iberian Peninsula.28
Within the context of the reconquista and the conduct of a ‘just war’ against
the Muslims, the validity of the papal grants had been based upon the concept
of a theological and political supremacy of the pope over non-Christian territories, as had been put forward by Hostiensis during the thirteenth century.29
In the fourteenth century, this concept had been employed to enable the pope
not only to legitimize Portuguese crusades in North-West Africa but also to
donate African land and trade monopolies to the Portuguese.30
In the case of non-Christian peoples, such as the Canarian Guanches and
the Amerindian tribes, who had not engaged in a war against Christianity thus
far, the pope apportioned their lands as compensation for the duty of Christian
mission in these territories, which the secular kings were obliged to organize and finance.31 As the first Christian European countries to interact with
Fundamentales en Francisco de Vitoria (Valladolid: Secretariado de Publicaciones e Intercambio
Científico, Universidad de Valladolid, 1999), pp. 20, 149-165.
27
he bull Inter caetera, 4th of May 1493, in, European Treaties Bearing on the History of the
U.S. and its Dependencies to 1648. Tome 1, ed. by Frances Davenport (Washington D.C.:
Carnegie Institution of Washington publication, 1917), pp. 72-75.
28
Carmen Bernand and Serge Gruzinski, Histoire du nouveau monde. De la découverte à la
conquête (Paris: Fayard, 1991), pp. 65-66; Odilo Engels, Reconquista und Landesherrschaft.
Studien zur Rechts- und Verfassungsgeschichte Spaniens im Mittelalter (Paderborn: Schöningh,
1989), p. 293; David Abulafia, he Discovery of Mankind. Atlantic Encounters in the Age of
Columbus (New Haven: Yale University Press, 2008), p. 10.
29
Hostiensis, ‘Reduction of the Teachings of Innocent IV on the Legal Status of Infidels’, in
Fontes Historiae Iuris Gentium. Quellen zur Geschichte des Völkerrechts, ed. by Wilhelm G. Grewe
(Berlin: De Gruyter, 1995), p. 351; See also: Id., Summa Aurea, De Treuga et Pace, ed. by
F. Martini Abbatis (Venice 1574), column 359; James A., Brundage, ‘Holy War and the Medieval
Lawyers’ In Id., he Crusades, Holy War and Canon Law (Aldershot: Variorum, 1991), pp. 99-140
(p. 114); Eberhard Straub, Das Bellum Iustum des Hernán Cortés in Mexico (Köln und Wien:
Böhlau, 1976), p. 37; Abulafia, he Discovery of Mankind, p. 72; Jörg Fisch, Die europäische
Expansion und das Völkerrecht (Stuttgart: Franz Steiner, 1984), pp. 189-190.
30
Eberhard Schmitt and Charles Verlinden (Ed.), Die mittelalterlichen Ursprünge der europäischen Expansion - Dokumente zur Geschichte der europäischen Expansion. Tome 1, (München: Beck,
1986), p. 218; Goti Ordeñana, Del Tratado de Tordesillas a la Doctrina de los Derechos fundamentales en Francisco de Vitoria, pp. 61, 32-41; Horst Gründer, Welteroberung und Christentum. Ein
Handbuch zur Geschichte der Neuzeit (Gütersloh: Gütersloher Verlagshaus, 1992), p. 87.
31
Abulafia, he Discovery of Mankind, pp. 82, 89, 72; Fisch, Die europäische Expansion und
das Völkerrecht, p. 48; Martin Van Gelderen, ‘Grotius and Vitoria on Natural Law and
J. humfart / Grotiana 30 (2009) 65–87
73
overseas peoples in this way, the Spanish and the Portuguese benefited most
from such donations. he indigenous rulers of these territories, the nonChristian princes, were believed to be unfit to be rightful owners (veri domini)
because of their lack of faith and morals. On the occasion of the donation of
the Canary Islands, Pope Clement VI wrote: ‘Forte enim infideles ratione infidelitatis merentur perdere omnem dominium.’32 ‘Nullum dominium debet esse
sine virtute. In infidelibus autem nulla est virtus, sed ymago virtutis solum. Ergo
nec verum dominium cum sine fide impossibile sit placere deo.’33 ‘By reason of
their infidelity, non-Christians lose their right to dominium’, writes Clement.
Dominium presupposed morals, which – in the eyes of Pope Clement – infidels could not possibly have.
According to Grotius’s evaluation, the Portuguese monopoly at the beginning of the seventeenth century was still based on the supra-territorial power of
the papacy and concomitant political-theological ideas. In the case of the East
Indies in particular, both lines of justification – the ‘just war’ against Muslims
and the duty to convert the non-Christians – could be used because the Asian
people were, as Grotius wrote, ‘partim idolatrae, partim Mahumetani’34 – ‘in
part idolaters, in part Mohammedans’.35
However, Grotius quotes those historical justifications only in order to
refute them. According to Grotius, the ‘just war’ against infidels is not a legitimate reason for conquest: ‘It is heretical to hold that infidels are not the
owners of the property that belongs to them. And the act of snatching from
them, on the sole ground of their lack of faith … is an act of thievery and
rapine no less than it would be if perpetrated against Christians.’36 Grotius
also refutes the raya of pope Alexander VI, which granted non-Christian territories as compensation for the task of religious conversion. According to
Grotius, the apportionment made by Alexander VI was illegitimate because
International Relations’, Grotiana 14/15 (1993/94), 3-37 (p. 13); Diana Wood, Clement VI: the
Pontificate and Ideas of an Avignon Pope (Cambridge: Cambridge University Press, 1989),
pp. 180, 190; Schmitt and Verlinden (Ed.), Die mittelalterlichen Ursprünge der europäischen
Expansion, pp. 192, 207, 210; Gründer, Welteroberung und Christentum, pp. 87, 93; Pedro
Leturia, ‘Der heilige Stuhl und das spanische Patronat in Amerika’, Historisches Jahrbuch 46
(1926), 11-71, (pp. 66-68).
32
Clement VI, Sermon 45, Ste-G. 240, fol. 341r., cited after: Wood, Clement VI,
p. 193n83.
33
Ibid., fol. 343r, cited after Wood, Clement VI, p. 194n90; See also: Felipe FernándezArmesto, Before Columbus. Exploration and Colonisation from the Mediterranean to the Atlantic.
1229 – 1492 (Basingstoke: Macmillan, 1987), p. 232.
34
Grotius, De iure praedae, XII, p. 209.
35
Id., Commentary, p. 308.
36
Ibid., p. 308.
74
J. humfart / Grotiana 30 (2009) 65–87
no one could grant what was not his, and the pope did not own the nonChristian territories that he gave away in 1493. On the other hand, Grotius
concludes, if the pope had acted only as ‘arbiter between the two peoples …,
we must infer that the apportionment was drawn up only with reference to the
Spaniards and the Portuguese and therefore will not affect the other peoples
of the world.’37
In contrast to the Iberians’ politically-theologically founded claims, Grotius
depicts a system of equal states, legitimized by natural law. He applies the
principle of the Freedom of the Seas, derived from Roman law, to international maritime waters.38 ‘he sea is an element common to all’, writes
Grotius.39 So, he concludes, it can be sailed by everyone. his is the basic argument of the twelfth chapter of Grotius’s legal opinion De iure praedae, which
was later reworked and separately published as Mare liberum.
Following this principle of the Freedom of the Seas, Grotius classified the
procedure of the VOC’s captain Van Heemskerck as a ‘private just war’ (bellum iustum privatum).40 Grotius argues that Van Heemskerck defended his
natural right freely to travel and trade on the world’s seas against illegitimate Portuguese claims.41 According to Grotius, such an unusual act of
private war could be justified because in the Strait of Malacca, Van
Heemskerck had been far from the range of any state power that could have
defended his natural rights. Van Heemskerck therefore had to defend his natural right himself: ‘Eatenus juste bellum privatum suscipitur, quatenus judicium
deficit.’42
According to Grotius, such a defence of one’s own natural right does
not have to be a reaction to a concrete attack. Van Heemskerck’s capture of
the Santa Catarina had not been preceded by a Portuguese attack. However,
the Santa Catarina and her crew could be rightfully punished due to their
37
Ibid., p. 309.
Dig., I.8.5; see also: Gai, inst. II.1; Ernest Nys, Les origines du droit international, p. 11.
39
Grotius, Commentary, p. 322.
40
Porras, ‘Constructing International Law in the East Indian Seas’, p. 755; See: Grotius,
De iure praedae, VI, p. 59-62, chapter: ‘Quae justa sit causa efficiens belli privati’; Grotius,
Commentary, pp. 127-142.
41
To Grotius, the criterion for a bellum iustum is the compensation for an unjust act, for
example the breach of a contract or a military aggression. He quotes Augustin’s classic definition
of the bellum iustum: ‘Justa autem bella definiri solent, quae ulciscuntur injurias.’, see: Grotius,
De iure praedae, VIII, p. 68; Grotius interprets this right to compensate an unjust act as also
extending to private persons, which inevitably leads to the figure of a bellum iustum privatum, a
term however that Grotius himself does not use.
42
Ibid., VIII, p. 95; Commentary, p. 142: ‘A private war is undertaken justly in so far as judicial recourse (judicium) is lacking.’
38
J. humfart / Grotiana 30 (2009) 65–87
75
belonging to Portugal,43 whose claim to a monopoly on traffic on the world
seas was itself in contradiction to natural law.44 herefore, Grotius argues, Van
Heemskerck’s capture of the Santa Catarina was an act of bellum iustum privatum and the booty of three and a half million Dutch guilders from the hold of
the ship was the legitimate property of the VOC.
he theology of free trade
Grotius’s predecessor Vitoria’s concept of the source of law can be regarded as
theological voluntarism. In Vitoria’s thought, even natural law bears traces of
positivism inasmuch as its content is dependent upon the will of God in his
function as universal legislator.45 ‘If god did not exist’, said Vitoria in one of
his relectiones, ‘there would be no sin nor a moral flaw’.46 In contrast to Vitoria’s
position, Grotius’s conception of natural law can be interpreted as a secularized one.47 In his chef d’oeuvre, De iure belli ac pacis, Grotius applied Gregory
of Rimini’s famous notion – ‘etiamsi daremus … non esse deum’ – to natural
law,48 to make the argument that natural law would still be valid even if ‘god
43
Ibid., p. 158: ‘Individual citizens are also bound by the act of the state. Indeed, it is in
keeping with natural equity, since we derive advantages from civil society, that we should likewise suffer its disadvantages.’
44
Ibid., XII, p. 363: ‘Since it has been demonstrated … (with authoritative confirmation
drawn from Victoria and with the aid of examples) that a just cause of war exists when the freedom of trade is being defended against those who would obstruct it, we arrive at the conclusion
that the Dutch had a just cause for war against the Portuguese.’ I will later come back to this
passage.
45
On Legal Positivism at Vitoria see: Johannes humfart, Die Begründung der globalpolitischen Philosophie. Zu Francisco de Vitorias relectio de indis recenter inventis von 1539 (Berlin:
Kulturverlag Kadmos, 2009), Chapters: ‘ “Yo le compro llanamente” – Vitorias Haltung zu conquista und Sklaverei in den Briefen’, ‘Lex divina und ius naturale’.
46
Francisco de Vitoria, ‘De eo, ad quo tenetur homo, cum primum venit ad usum rationis’,
II, 9, edited by Ulrich Horst et al., Latin with German translation on facing pages, in Id.,
Vorlesungen II. Völkerrecht – Politik – Kirche (Stuttgart et al.: Kohlhammer, 1997), pp. 92-187
(p. 160): ‘Si vel Deus non esset vel nihil praeciperet, ego non dubito, quin nullum esset proprie peccatum aut malum morale’. With these words, Vitoria denies the possibility of a morality without
the laws that are based upon the will of God. If God did not exist, Vitoria concludes, there would
be neither sin nor unethical acts. his formula is however not explicitly applied to international
law by Vitoria, but can also be read as referring only to the theological categories of peccatum and
malum morale.
47
Georg Cavallar, ‘Cosmopolis. Supranationales und kosmopolitisches Denken von Vitoria
bis Smith’, Deutsche Zeitschrift für Philosophie 53 (2005), 49-67 (p. 55).
48
Hugo Grotius, De jure belli ac pacis libri tres, in quibus jus naturae et gentium, item juris
publici praecipua explicantur, prolegomena, ed. by James Brown Scott, reproduction of the edition of 1646 (Washington D.C.: Carnegie Institution of Washington, 1913), p. 5.
76
J. humfart / Grotiana 30 (2009) 65–87
did not exist’. In itself, however, this formula does not necessarily imply a
secularization, but it can be regarded as an intellectual formula that follows
the medieval tradition of the discussion of impossible hypotheses, just as the
phrase ‘si per impossibile … deus ipse non esset’ is used by Gregory of Rimini.49
In De iure praedae, however, the secularization that Grotius undertakes
seems immediately more obvious.50 Against an international order dominated
and regulated by the papacy and the monopolies it granted, he presents an
international order of free commerce and traffic. With his apologia of the bellum iustum privatum, Grotius gave the anarchic competition of private trading
companies and pirates on the oceans of the seventeenth century the first internationally recognized legal justification. On this count, Grotius cannot be
considered to be simply the father of public international law, but also the
father of the delimitation of European public law beyond the line of amity,
which legally separated the high seas from the European continent.51 his is
particularly true in regard to coophandel met force (‘trade supported by the
force of arms’52), the policy of the VOC, which Grotius qualified as a bellum
iustum privatum.
While Grotius’s formulation of the Freedom of the Seas seems, on the
surface, to be a recipe for mere anarchy, on closer examination, the Grotian
principle of the Freedom of the Seas appears to represent a monist, universalist
line of legal thought. In this case too, Grotius’s role must be conceived as a
‘connector’ between traditional Christian international law and modern international law (‘Bindeglied ’).53 By developing his principle of the Freedom of the
49
Gregory of Rimini, Lectura super primum et secundum sententiarum, dist. 34-37, qu.1, art.2,
ed. by A. Damasus Trapp and Venicio Marcolino (Berlin and New York: De Gruyter, 1980),
p. 235; Paola Negro, ‘A Topos in Hugo Grotius: “Etiamsi daremus non esse Deum” ’, Grotiana
19 (1989), 3-23 (p. 12); Ernst Wolfgang Böckenförde, Geschichte der Rechts- und Staatsphilosophie
(Tübingen: Mohr Siebeck, 2006), p. 341n4.
50
his paper deals with the secularization in De iure praedae from the point of view of the
history of legal ideas. For a discussion of this thesis that is more focused on theology, see: Mark
Somos, ‘Secularization in De Iure Praedae: from Bible Criticism to International Law’, Grotiana
26/28 (2005/2007), 147-191.
51
Schmitt, Der Nomos der Erde, pp. 59-69; Grewe, Epochen der Völkerrechtsgeschichte,
pp. 181-193.
52
Peter Borschberg, ‘Hugo Grotius, East India Trade and the King of Johor’, Journal of
Southeast Asian Studies 30, 2 (1999), 225-248 (p. 244); Id., ‘he Seizure of the Sta. Catarina
Revisited: he Portuguese Empire in Asia, V.O.C. Politics and the Origins of Dutch-Johor
Alliance. (1602 – 1616) ’, Journal of Southeast Asian Studies 33, 1 (2002), 31-62 (p. 35).
53
Christoph A. Stumpf, ‘Völkerrecht unter Kreuz und Halbmond. Muhamaad al-Shaybani
und Hugo Grotius als Exponenten religiöser Völkerrechtstraditionen’, Archiv des Völkerrechts 41
(2003), 83-100 (p. 95).
J. humfart / Grotiana 30 (2009) 65–87
77
Seas, Grotius not only negated the principle of papal supremacy, on which the
Iberian claims to a monopoly of trade had originally rested. He also developed
and expanded upon the rhetoric and structure of the international law of the
Middle Ages insofar as he was occupied with the problem of an equivalent to
replace the supra-territorial power of the pope.
To Grotius, the principle of the Mare liberum is essentially of the same value
and strength as the papal dominium orbis of the middle ages. he Freedom of
the Seas is depicted by Grotius as a supreme, ‘most secure and unchanging’
principle – regula certissima, cuius perspicua atque immutabilis est ratio:
‘Fundamentum struemus hanc iuris gentium, quod primarium vocant regulam
certissimam, cuius perspicua atque immutabilis est ratio; licere cuivis genti quamvis alteram adire, cumque ea negotiari.’54
In Grotius’s conception, this principle of natural law is truly meta-political
inasmuch as it cannot be abrogated by any political force, such as a republic
or a prince (‘ullam rempublicam aut principem’).55 his absolute, truly metapolitical quality of Grotius’s conception of free trade is also very clearly reflected
in the language he chooses to use. Grotius himself referred to a ‘jus … sanctissimum’,56 a ‘sacrosanct law’.57
his choice of words and the structural conception of the Freedom of the
Seas as a supreme principle clearly points to an analogy between Grotius’s
concept of international law and the Iberian medieval one against which
he argues. Whilst papal blessing had legitimized the global Iberian trade
monopoly, Grotius secures an absolute, truly meta-political validity of the
Mare liberum through the connection of his principle of free trade to theological premises.
Grotius legitimizes his principle of free trade by the use of a providential argument that was to become a locus classicus in the later modern debate
on the subject.58 he regional, continental and national differences and the
54
‘We will lay this certain rule of the law of nations (which they call primary) as the foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any other
and to trade with it.’, Hugo Grotius, he Freedom of the Seas or he Right which Belongs to the
Dutch to take part in the East Indian Trade, I, ed. by James Brown Scott and transl. by Ralph Van
Deman Magoffin, Latin with English translation on facing pages (New Jersey: he Lawbook
Exchange, 2001; repr. of: New York: Oxford University Press, 1916), p. 7; he version in the De
iure praedae differs. See: De iure praedae, XII, p. 205: Instead of ‘licere cuivis genti’, Grotius only
writes ‘licere Batavis’. I therefore quote the Mare liberum version.
55
Id., De iure praedae XII, p. 206.
56
Ibid.
57
Id., Commentary, p. 304.
58
Viner, he role of Providence in Social Order, pp. 40-54.
78
J. humfart / Grotiana 30 (2009) 65–87
respective lacks and surpluses of resources forced humankind to maintain
global economic contact with one another, argues Grotius. Inasmuch as the
Christian God is conceived as the creator of nature, he is also the creator of
those regional, continental and national differences, which ultimately force
mankind to maintain economic global contact.59 he logic inherent in creation, which Grotius like all theorists of natural law was preoccupied with
deciphering, therefore points directly towards an openness of global trade.
‘Deus hoc ipse per naturam loquitur’, ‘God himself says this speaking through
the voice of nature’, wrote Grotius in Mare liberum:60
‘For God has not willed that nature shall supply every region with all the
necessities of life; and furthermore, He has granted pre-eminence in different
arts to different nations. Why are these things so, if not because it was His Will
that human friendships should be fostered by mutual needs and resources.’61
With this argument, Grotius invoked a pre-Christian tradition of economic
theology that reaches from Philo of Alexandria and Libanius to early fathers of
the church such as John Chrysostom and Origen.62 his pre-Christian line of
thought seems to be an important aspect of Grotius’s economic theology
which, inasmuch as it is based upon natural law, does not necessarily depend
on Christian narratives. Grotius himself wrote that natural law is independent
from the events of the Christian history of salvation.63
However Grotius’s principle of free trade cannot be fully understood when
thought of as being derived solely from Stoic or other pre-Christian concepts.64
His ideas are strongly connected to the Christian history of salvation inasmuch as they can be conceived teleologically. he assumption that global trade
is founded on divine providence seems to imply that it would be morally good
to bridge successively the differences between the peoples of the Earth by trading. According to Grotius, God has unequally distributed the goods of the
Earth because ‘it was his will that human friendships should be fostered by
59
Porras, ‘Constructing International Law in the East Indian Seas’, pp. 756, 761.
Grotius, he Freedom of the Sea, p. 7. his passage is formulated slightly differently and less
sharply in De iure praedae, which is why I use the Mare liberum version here again.
61
Id., Commentary, pp. 302-303.
62
Viner, he role of Providence in Social Order, pp. 36-37, 42; Douglas A. Irwin, Against the
Tide. An Intellectual History of Free Trade (Princeton: Princeton University Press, 1996),
pp. 16-17.
63
Grotius, De iure praedae III, p. 33: ‘Jus est semper,etiam post Christum’; Id., Commentary,
pp. 54-55: ‘Law is valid for all times, it is valid even for times after the advent of Christ.’
64
Dickey for example links Grotius’s understanding of free trade to the Stoic notion of oikeiosis, which is an important aspect of Grotius’s doctrine of free trade, although not the only one.
Dickey, ‘Doux commerce and humanitarian values’, p. 280.
60
J. humfart / Grotiana 30 (2009) 65–87
79
mutual needs and resources (voluit mutua egestate et copia humanas foveri
amicitias).’65 Seen from this perspective, an intensification of global trade can
also fortify friendships among human beings and is therefore desirable from a
historico-philosophical point of view.
In line with these teleological dynamics of free trade, Grotius conceives an
eschatology of economy according to which the accumulation of goods by
means of trade will one day comprise a great gift for God.66 Grotius writes:
‘Fiet ita quod apud prophetam est, ut negotiatio et quaestus omnis Deo
consecretur.’67
Indeed, Grotius also quotes Seneca in order to legitimize the providential
aspect of his economic theology: ‘In Seneca’s opinion, the supreme blessing
conferred by nature resides in these facts: that by means of the winds she
brings together peoples who are scattered in different localities, and that she
distributes the sum of her gifts throughout various regions in such a way as to
make reciprocal commerce a necessity for the members of the human race.’68
But a Stoic origin of this justification of trade is not ultimately plausible.
According to Viner, the ideal of economic expansion was unknown to antiquity. he antique conception of economy was mostly oriented towards the
ideal of autarkeia, or self-sufficiency.69 It was along these lines that Aristotle,
for example, expressed his strong critique of trade in general.70
As for the passage from Seneca’s Naturales quaestiones, which Grotius quotes
in order to strengthen his economic-theological thesis, it is obvious that he is
using Seneca’s words selectively. To Seneca, international trade was not at all
an entirely positive phenomenon. While Seneca does praise divine providence,
which enables man to trade globally and traffic goods, he is also careful to add
that ‘the madness of mankind’ (generis humani dementia)71 is to blame for the
fact that this pursuit of global traffic can so easily become a cause of war.
65
Id., Commentary, p. 303; Latin phrase: Id., De iure praedae XII, p. 205; Porras, ‘Constructing
International Law in the East Indian Seas’, p. 763.
66
Ibid., p. 760.
67
Isaiah: 23. 18; Grotius, De iure praedae XV, p. 321; Commentary, p. 468: ‘Isaiah prophesied, that all merchandise and all profit shall be consecrated to the Lord.’
68
Ibid., XII, pp. 303-304.
69
Jacob Viner, ‘Early Attitudes towards Trade and the Merchant’, in Id., Essays on the
Intellectual History of Economics (Princeton: Princeton University Press, 1991), 39-45
(pp. 39-41); Porras, ‘Constructing International Law in the East Indian Seas’, p. 761.
70
Aristotle: Politics. 1257 b 22.
71
Seneca, Naturales Questiones, tome II, V, 18, 4-5, ed. and transl. by homas H. Corcoran,
Latin with English translation on facing pages (Cambridge, MA.: Harvard University Press,
1972), pp. 114-115.
80
J. humfart / Grotiana 30 (2009) 65–87
Grotius and Vitoria
Grotius wrote his legal opinion De iure praedae after 1576, the year in which
Jean Bodin published his Six livres de la république. he primacy of universal
principles over local sovereignties, which Grotius defended, was therefore outdated in the larger context of European political theory. But this did not necessarily devalue Grotius’s position, for Grotius did not conceive his principle
of free trade for the European continent alone, outside of which the principle
of territorial or state sovereignty did not play a great role until at least 1945.
On the contrary, it was exactly the outdatedness of Grotius’s theory of the
Freedom of the Seas that determined its extreme strategic value in the specific
debate in which he employed it. For in some respects it was a locus classicus,
especially for the Spaniards, against whom Grotius made his case using this
very argument.
As Grotius never ceases to mention, the Spaniards themselves had used the
justification of the Mare liberum approximately 60 years before. he right
freely to travel and trade had been used by the Spaniards in order to legitimize
Spanish colonialism in South and Central America. In his Relectio de indis of
1539, Francisco de Vitoria argued along similar lines to those later taken up
by Grotius. Vitoria declared an unchangeable right to travel and trade freely,
which allowed the Spaniards and any other nation to trade with any people
they wanted and to travel wherever they pleased. Vitoria called this principle
the ius communicationis, literally the ‘right of communication’.72
According to Grotius’s interpretation of Vitoria, the latter accused the indios
of having denied the Spaniards their right to travel freely on their land by trying to expel them. hus, in Grotius’s interpretation of Vitoria, Vitoria granted
the Spaniards the right to defend their natural right to travel and trade freely
in a ‘just war’ (bellum iustum).73 In this way, Spanish colonialism could be
justified as a bellum iustum, which served the defence of the natural right of
72
Francisco de Vitoria, Relectio de indis recenter inventis, III.1, ed. by James Brown Scott
(Washington D.C.: Carnegie Institute of Washington 1917), p. 257.
73
For Vitoria himself, this connection is however not so clear, because Vitoria demands that
the Spaniards try to convince the Amerindians by peaceful means before waging war against
them. ‘Hispani primo debent ratione et suasionibus tollere scandalum.’, See: Vitoria, Relectio de
indis, III.1, p. 260; Unlike Grotius’s position in Mare liberum, Vitoria’s focus lies not only on
global economics, but also on global politics. See: humfart, Die Begründung der globalpolitischen
Philosophie; Id., ‘Das ius gentium als Form der translatio imperii. Francisco de Vitorias Legitimation
des spanischen Kolonialismus im Kontext der Arbeiten Miguel de Ulzurruns, Hernán Cortés’
und Bartolomé de las Casas’, in Verfassung jenseits des Staates - Von der europäischen zur globalen
Rechtsgemeinschaft, ed. by Ingolf Pernice et. al. (Berlin: Nomos Verlag, 2009), pp. 15-39.
J. humfart / Grotiana 30 (2009) 65–87
81
the Spaniards, Grotius argued. ‘Castellanis etiam in Americanos has justas
potuisse belli causas esse … Victoria putat, si peregrinari et degere apud illos prohiberentur, si arcerentur a participatione earum rerum, quae jure gentium aut
moribus communia sunt, si denique ad commercia non admitterentur.’74
It is of great historical irony that, in his defence of Van Heemskerck’s bellum
iustum privatum, Grotius turned Vitoria’s argument against the Iberians themselves. He wrote: ‘Since it has been demonstrated … (with authoritative confirmation drawn from Victoria and with the aid of examples) that a just cause
of war exists when the freedom of trade is being defended against those who
would obstruct it, we arrive at the conclusion that the Dutch had a just cause
for war against the Portuguese.’75
What made Vitoria’s argument interesting to Grotius and so appropriate to
his attack on Iberian claims to monopoly was the fact that the Catholic Vitoria
also refuted the papal claim to be ‘the lord of the world’ (‘dominus … totius
orbis’).76 Vitoria therefore provided Grotius with the line of argument he
needed to refute the Iberian claims of monopoly that were based on papal
authority. In fact, Grotius seems to have quoted Vitoria’s refutation of worldwide papal authority.77
However, to Vitoria, both the universal validity of the right to free trade and
the refutation of papal authority were subject to significant constraints.
Although Vitoria disagreed with the emperor’s claims of world domination in
simple, unambiguous terms – ‘Imperator non est dominus totius orbis’ (the
emperor is not the lord of the world)78 – he significantly mitigated his refutation of papal authority, formulating his relatively complex opinion thus: ‘Papa
non est dominus civilis aut temporalis totius orbis, loquendo proprie de
dominio et potestate civili’.79
74
Grotius, De iure praedae XII, pp. 206-207; It is necessary to quote the Latin version here,
because Vitoria’s terms ‘peregrinare’, ‘participatio’, ‘commercium’, to which Grotius refers, are not
fully translatable with all of their complex philosophical and theological connotations.
Commentary, p. 304: ‘Vitoria holds that, if the Spaniards should be prohibited by the American
Indians from travelling or residing among the latter, or if they should be prevented from sharing
in those things which are common property under the law of nations or by custom – if, in short,
if they should be barred from the practice of commerce – these causes might serve them as just
grounds for war against the Indians.’
75
Ibid., XII, p. 363.
76
Vitoria, Relectio de indis, II.3, p. 240.
77
Grotius, Commentary, p. 310.
78
Vitoria, Relectio de indis, II.1, p. 235.
79
Ibid., II, 3, p. 240; Vitoria, ‘On the Indians Lately Discovered’, II.3, p. xxi: ‘he pope is
not civil or temporal lord of the whole world in the proper sense of the terms ‘lordship’ and ‘civil
power’.
82
J. humfart / Grotiana 30 (2009) 65–87
To Vitoria, the pope was therefore not the lord of the world in regard to
actual political power. But, strangely enough, this did not mean to Vitoria that
the pope was not allowed to grant monopolies of trading to the Spanish and
Portuguese. ‘he pope [could] forbid others … to trade.’, wrote Vitoria in the
third section of his Relectio de indis.80 And furthermore: ‘Inasmuch as the sovereigns of Spain were the first to patronize and pay for the navigation of the
intermediate ocean, and as they then had the good fortune to discover the
New World, it is just that this travel should be forbidden to others and that
the Spaniards should enjoy alone the fruits of their discovery.’81 According to
Vitoria, the raya of 1493 was therefore fully justified.
he restriction of the freedom to trade by Vitoria does not, however, oppose
the line of economic-theological thought such as is to be found in Grotius’s
Mare liberum. Rather, the reason for Vitoria’s stance on the supremacy of the
pope over global trade lay exactly in the theological function which Vitoria
believed trade to have. To Vitoria, global trade was powerfully connected to
the global Christian mission, which was entrusted to the supervision of the
pope. According to Vitoria, the pope did not have direct political power over
the world but, following the pseudo-homist tradition, Vitoria perceived the
pope as having a potestas indirecta,82 an indirect power. his meant that the
pope had temporal power, inasmuch as the temporal concerns the spiritual:
‘he pope is not temporal lord, yet he has power in matters temporal when
this would subserve matters spiritual.’
he global Christian mission was a task born of profound spiritual concerns, which is why Vitoria finally drew the following conclusion: ‘It is the
pope’s concern to bestow especial care on the propagation of the Gospel over
the whole world.’83 According to Vitoria, the pope could therefore ‘entrust it
to the Spaniards to the exclusion of all others, if the sovereigns of Spain could
render more effective help in the spread of the Gospel in those parts.’84
Since the aforementioned papal grants of overseas territories and trade
monopolies were traditionally given as compensation for fulfilling the duty of
Christian mission, one can also easily interpret the text of the bull of 1493
80
Ibid., III.10, p. xli.
Ibid., p. xlii.
82
Arthur F. Utz, ‘Weltliche und kirchliche Gewalt bei Francisco de Vitoria’, Die neue Ordnung
50, 6 (1996), 455-464 (p. 461); Ptolomaei Lucensis, Continuatio S. homae De regno, III, 13, in
Corpus homisticum. S. homae de Aquino Opera Omnia, ed. by Enrique Alarcón (Navarra:
Universitatis Studiorum Navarrensis, 2000), http://www.corpusthomisticum.org/xrp.html:
‘Dominium Christi ordinatur ad salutem animae et ad spiritualia bona, ut iam videbitur, licet a
temporalibus non excludatur, eo modo quo ad spiritualia ordinantur.’
83
Vitoria, ‘On the Indians Lately Discovered’, II.3, p. xli.
84
Ibid.
81
J. humfart / Grotiana 30 (2009) 65–87
83
from this perspective. he papal grant addressed the kings of Castile in the
following way: It is ‘your duty to lead the peoples dwelling in those islands to
embrace the Christian profession …. In order that you may enter upon so
great an undertaking with greater readiness and heartiness … we … give,
grant and assign forever to you and your heirs … the aforesaid countries and
islands’. ‘We strictly forbid all persons of no matter what rank … without your
special permit … to go for the sake of trade or any other reason … to the said
islands and countries.’85
For Vitoria as well, the Spanish trade monopoly was compensation of a kind
for the Spanish duty to preach the gospel. Since the pope was, according to
Vitoria, entitled to supervise the mission, he could ‘not only … forbid others
to preach, but also to trade …, if this would further the propagation of
Christianity, for he can order temporal matters in the manner which is most
helpful to spiritual matters.’86 Reasoning why it might not be beneficial for the
Christian mission if all nations were allowed to go to America, Vitoria sketches
the following scenario: ‘If there was to be an indiscriminate in-rush of
Christians from other parts to the part in question, they might easily hinder
one another and develop quarrels, to … the disturbance of the concerns of the
faith and of the conversion of the natives.’87 To Vitoria as to Grotius, trade was
therefore a meta-political, spiritual procedure which did not belong to the
secular realm of politics so much as to the theological realm of matters
spiritual.
Vitoria’s assertion that only the pope could deny the ius communicationis
clearly illustrates that the ius communicationis was, for Vitoria, ultimately a
principle that belonged to the domain of the spiritual power. If, however, the
ius communicationis was denied by somebody else, Vitoria envisaged the same
punishment as the traditional canonical doctrines had decreed for anyone who
prevented missionaries from preaching the gospel – the bellum iustum.88 In
Pope Innocent IV’s much cited comment on the subject, one finds for example the following line of thought: ‘Mandare potest Papa infidelibus quod admittant praedicatores.’89 Although Innocent IV – as later did Vitoria90 – granted
85
‘he bull Inter Caetera, 3rd of May 1493’, in Davenport, European Treaties, pp. 58-67
(pp. 62-63).
86
Vitoria, ‘On the Indians Lately Discovered’, II, 3, p. xli.
87
Ibid., p. xlii.
88
Ibid., III,6, p. xxxix.
89
Innocent IV, Apparatus super quinque libris decretalium, Quod super his, PDF Version
Gallica (Venice 1481), p. 505; Id., ‘Pope Innocent IV on the Legal Status of Infidels’, in
Fontes Historiae Iuris Gentium. Quellen zur Geschichte des Völkerrechts, ed. by Wilhelm G. Grewe,
348-350 (p. 350).
90
Vitoria, ‘On the Indians Lately Discovered’, I, 24, p. xiv.
84
J. humfart / Grotiana 30 (2009) 65–87
the non-Christians the right to be the legitimate owners (veri domini) of their
lands, he also granted the pope the right to command the non-Christians to
admit Christian priests among them. If they failed to admit these priests, the
pope would have to punish the non-Christians (‘puniendi sunt’), writes
Innocent. Clearly Vitoria enhanced this ius praedicandi, which he also
defends,91 to a legal title of secular commerce, the ius communicationis. In
respect to the sanction of the bellum iustum and their close connection to the
papacy, trade and mission have the same legal status in Vitoria’s De indis.
As with Grotius, trade also had an important function in the Christian history of salvation according to Vitoria. It was, after all, the biblical narrative of
the common Adamitic – or Noahic – origin of all mankind on which Vitoria
based his notion of ius communicationis, the right to travel and trade freely.92
Vitoria’s conception of trade also shares with Grotius’s its historico-teleological
aspect. To Vitoria, the right to trade was not based upon the history of salvation
alone, with its hypothesis of the common origin of all men. It also fulfilled an
important function regarding the future of the history of salvation. To Vitoria,
as to other contemporary Iberian authors, the history of salvation was expected
to be fulfilled by the ‘conversion of all peoples’ to Christianity.93 he paragraph
of the Bible on which Vitoria based his Relectio de indis deals directly with the
Christian missionary imperative: ‘Go and make disciples of all nations, baptising them in the name of the Father and of the Son and of the Holy Spirit.’94 his
passage from Matthew is intimately related to a similar verse in a preceding
chapter. Here, the connection between the global Christian mission and eschatology is expressed even more succinctly: ‘his gospel of the kingdom shall
be preached in all the world for a witness unto all nations; and then shall the
end come.’95
To Vitoria, trade was a temporal instrument that concerned the spiritual
realm because it helped to achieve the conversion of all peoples assumed in the
Christian conception of the fulfilment of history. In this sense, Vitoria perceived ‘the end of time’ as being dominated by the pope as ‘one shepherd’ of
‘one flock’: ‘In fine saeculi fiet unum ovile et unum pastorem’.96 If the pope had,
91
Ibid., III,9, p.xli.
Ibid., III,2, p. xxxvi.
93
Eberhard Straub, Das Bellum Iustum des Hernán Cortés in Mexico, p. 15; Djelal Kadir,
Columbus and the Ends of the Earth. Europe’s Prophetic Rhetoric as Conquering Ideology (Berkeley:
University of California Press, 1992), p. 32.
94
Vitoria, ‘On the Indians Lately Discovered’, frontpage of Appendix A, no page number,
between p. 288 and i; Matt. 28. 19.
95
Id., 24.14.
96
Vitoria, Relectio de indis, II.3, p. 241; John 10. 16.
92
J. humfart / Grotiana 30 (2009) 65–87
85
according to Vitoria, a ‘power in matters temporal when this would subserve
matters spiritual’, this meant that the pope’s power extended to everything
which served to put an end to ‘temporal history’, that is, to fulfil the history of
salvation. To Vitoria, controlling and fostering trade was a means to reach this
much-desired culmination of the Christian history of salvation.
As this examination of the role of trade in Vitoria’s conception reveals,
Grotius’s quotation of Vitoria’s ius communicationis has far-reaching implications. For Grotius had also inherited Vitoria’s idea of an intrinsic Christian
morality of global trade and the connected notion of a possible punishment of
restrictions of trade with a bellum iustum. Grotius was not the first to assign to
trade a specific function in the history of salvation, as Porras suggests in her
examination of the matter: ‘Unlike Grotius …, Vitoria had not based his claim
on a strong version of the doctrine of the providential function of commerce.’97
More likely, Grotius had derived this spiritual concept of trade from Vitoria’s
allocation of trade to the spiritual domain of the pope. As the papal authority
was erased in Grotius’s Protestant conception, it was the theological function
of trade itself that remained.
Conclusion
he principle of the Mare liberum in Grotius’s conception can undoubtedly be
deduced from similar principles in Roman law, and from the cosmopolitan
thought of the Stoics.98 Grotius’s underlying assumption that trade was an
inherently positive and moral phenomenon can however not be traced back to
these sources. Particularly in regard to its historico-philosophical implications,
such a perception of trade can only be understood as stemming from the
Christian tradition of associating trade with the mission of conversion. In this
respect, a transmission of Christian economic theology from Vitoria to Grotius
can be clearly demonstrated. his is especially true in regard to the sanction of
bellum iustum for the punishments of political acts against the principle of free
trade, and in regard to an eschatological function of global trade.
In Mare liberum, Grotius dissolved the connection between the economictheological conception of trade and papal authority, which was extant in
97
Porras, ‘Constructing International Law in the East Indian Seas’, p. 771.
he quoting of Seneca was essential to the argument of the Mare liberum. See supra n74;
for Stoic thought and Grotius in general see: Hans Blom and Laurens Winkel (eds.), Grotius and
the Stoa. Grotiana 22/23 (2001/02).
98
86
J. humfart / Grotiana 30 (2009) 65–87
Vitoria’s Relectio de indis. his signified a secularization in the very literal sense
of the word. In respect to its original historical meaning, Lübbe defined secularization as a ‘deprivation or release of a thing, a territory or an institution
from spiritual-ecclesiastical observance and dominion.’99
However, Grotius’s secularization of global free trade did not involve any
form of de-sacralisation. Rather, Grotius replaced the absolute, supreme
authority of the institution of the papacy with the absolute, meta-political
authority of the principle of free trade. Although the concept therefore underwent a gradual secularization, the theological structure of free trade remained
intact. Applying Schmitt’s notion of ‘political theology’ – that certain terms of
political theory can be interpreted as ‘secularized theological concepts’100 – one
can also interpret Grotius’s conception of free trade as a secularized theological
conception of economy. It follows, therefore, that one can speak of an ‘economic theology’ regarding Grotius’s conception of free trade in De iure praedae
and Mare liberum.
Grotius’s economic theology in the Mare liberum is of interest because it
seems to be an example par excellence of what Sloterdijk in his reflection on
globalization has labelled a ‘secular missionary science’ of early modern global
trade.101 It also seems to be an illustration of the connection between Christian
mission and globalization that Löwith sketched in the last remarks of his
Meaning in History. here, Löwith asked rhetorically: ‘Is it perhaps that … the
hope in a future Kingdom of God, and the Christian command to spread the
gospel to all the nations for the sake of salvation have turned into the secular
presumption that we have to transform the world into a better world in the
image of man and to save unregenerate nations by Westernization and
re-education?’102
It is only in the original English version of the book103 that Löwith also
provocatively answers: ‘here are in history not only “flowers of evil” but also
99
Hermann Lübbe, Säkularisierung. Geschichte eines ideenpolitischen Begriffs (Freiburg im
Breisgau: Alber, 1975), p. 23.: ‘Entzug oder die Entlassung einer Sache, eines Territoriums oder einer
Institution aus kirchlich-geistlicher Observanz und Herrschaft.’
100
Schmitt, Politische heologie, p. 43, quote originally in German; Concerning this comparision between ‘economic theology’ and ‘political theology’ see: Agamben, Il regno e la gloria,
p. 14.
101
Peter Sloterdijk, Im Weltinnenraum des Kapitals. Für eine philosophische heorie der
Globalisierung (Frankfurt/M: Suhrkamp, 2005), p. 92: ‘säkulare … Missionswissenschaft’.
102
Karl Löwith, Meaning in History. he heological Implications of the Philosophy of History
(Chicago: he University of Chicago Press, 1957), p. 203.
103
In the German version, the provocative conclusion is omitted. See: Karl Löwith,
Weltgeschichte und Heilsgeschehen. Die theologischen Voraussetzungen der Geschichtsphilosophie
(Stuttgart: Metzler, 2004), p. 218.
J. humfart / Grotiana 30 (2009) 65–87
87
evils which are the fruit of too much good will and of a mistaken Christianity
that confounds the fundamental distinction between redemptive events and
profane happenings, between Heilsgeschehen and Weltgeschichte.’104 In regard
to economic theology, Löwith’s question about the ‘good’ or ‘evil’ of theology
is probably the wrong question to ask. It is indisputable that trust in the positive dynamics of free trade brought with it a global community of merchants
more widespread, more manifold and also more pleasant than any religious
community of the past. Nevertheless, unregulated markets do not necessarily
transform private vices into public benefits by divine providence, but private
vices can also simply lead to public and private disasters. Further inquiries into
the nature of economic theology may provide more clarity. Reading Grotius
from the point of view of a history of legal ideas at least makes visible how
missionary principles transformed into international law.
It remains to be remarked, however, that Grotius himself utilized Vitoria’s
economic theology for reasons neither intellectual nor theological, but rather
tactical. Grotius’s text Mare liberum must be interpreted within the context of
his legal opinion De iure praedae within which it was originally developed. he
Protestant Dutchman quoted the opinions of the Catholic Spaniard Vitoria
because Grotius assumed Vitoria’s argument would have a great impact on the
Spaniards and Portuguese against whom he argued. ‘Central to Grotius’s strategy was his reliance upon Iberian scholastics as a means of providing a series
of irrefutable propositions to the Spaniards,’ writes Wilson, summarizing the
standard opinion.105 Finally, Grotius’s economic theology, especially in regard
to its theological tradition, was an argument developed in order to defend the
economic interests of Grotius’s employers. If one should dare to answer the
broad question of which came first – an economic theology or economic interest – at least for Grotius, the answer can be found on the solid ground of
materialism.
104
105
Löwith, Meaning in History, p. 203.
Wilson, ‘Erasing the Corporate Sovereign’, p. 78.